Greger v. International Jensen, Inc., 86-1858

• Decision Date: 09 July 1987
• Docket Number: No. 86-1858,86-1858
• Parties: , 23 Fed. R. Evid. Serv. 184 Garland GREGER and Bonnie Greger, Appellees, v. INTERNATIONAL JENSEN, INCORPORATED, a Delaware Corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 937

820 F.2d 937

26 ERC 1188, 23 Fed. R. Evid. Serv. 184

Garland GREGER and Bonnie Greger, Appellees, v. INTERNATIONAL JENSEN, INCORPORATED, a Delaware Corporation, Appellant.

No. 86-1858.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1987.

Decided June 5, 1987.

Rehearing Denied July 9, 1987.

Anthony J. Sestric, St. Louis, Mo., for appellant.

Milton B. Garber, Fulton, Mo., for appellees.

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

This case involves a company whose manufacturing process allegedly created a nuisance on plaintiffs' neighboring property. Because of errors during the trial, we are compelled to reverse and remand for a new trial.

I. BACKGROUND.

On September 21, 1974, Garland and Bonnie Greger bought three-fourths of an acre of land in central Missouri near the Millersburg Exit of Interstate 70. At that time the building next door was an innocuous 1,400 square foot carpet warehouse. The Gregers began building a house on their new land. They planted trees, installed a sewer system and electric lines, and eventually a house began to take shape on the property. ¹

On September 24, 1975, when the house was nearly finished, the Discwasher Company ² bought the land next door, on which stood the carpet warehouse. Discwasher makes phonograph record cleaners, which remove dust and particles from a record's surface. Discwasher converted the warehouse to their purposes and began making record cleaning kits.

In early August of 1976, the Gregers moved into their new house, which they enjoyed for at least three dust-free years. The record is unclear as to when the Gregers first discovered that Discwasher was manufacturing more than just disc-cleaning equipment. The Gregers claim that they first discovered sawdust particles from the Discwasher plant on their property between 1979 and 1981. Because they were both working full time, however, the dust did not begin to bother them until 1984 to 1985, when they retired and began to spend more time at home. According to Discwasher, the Gregers first took action when their grandchildren, on a visit, noticed some brown dust in the new snow on their land.

In January of 1985, the Gregers complained to the Missouri Department of Natural Resources (Department), who sent Mr. Jim Wells, an environmental specialist, to collect samples of the offending dust from the Gregers' property. Laboratory analysis revealed the dust to be wood particles produced by mechanical operations.

The Department told Discwasher in March of 1985 to remedy the dust problem. Discwasher claims that this was their first notice of any dust problem, and that Mr. Greger told Mr. Michael Holt of Discwasher in April of 1985 that there was no urgency, and to take as much time as he needed to find a solution. Mr. Holt and Mr. Wells, working together, tried various methods to contain the dust but were unable to fix the problem until October of 1985, when Discwasher completely enclosed the sawdust bin collector area with a type of shed, so that a truck could be driven into the shed, the shed doors would then be closed, and the sawdust loaded into the truck. Mr. Holt saw and was satisfied with the solution during a test run in October of 1985. ³

According to Discwasher, the problem was fixed in March, not October, of 1985. Discwasher stated that their business experienced a decline, and they stopped manufacturing disc cleaners. Discwasher asserted that until October of 1985, when they resumed operations, the plant was only used to refinish some products that had been rejected by quality control officers. The Gregers protested, however, that during the summer of 1985, "strong and unpleasant lacquer odors wafted onto their property from the plant." The Gregers complained that despite the installation of the shed, they still saw dust flying onto their property and smelled lacquer.

The Gregers filed suit against Discwasher on May 28, 1985. A jury trial was held in May of 1986. The Gregers asserted that the dust and lacquer offenses had continued unabated up to the time of trial. A jury awarded the Gregers $25,000 actual damages and $75,000 punitive damages.

II. DISCUSSION.

Discwasher asserts a number of grounds of error, one of which we find serious enough to merit remanding the case for a new trial. We hold that the district court erroneously measured the period of the nuisance under Missouri law. We also note that the court may have erroneously submitted the issue of punitive damages to the jury.

A. Period of the Nuisance.

Discwasher argues that the district court erred in allowing evidence of damages up to the time of trial in May of 1986, rather than only up to the time the suit was filed in May of 1985. Discwasher argues that Missouri law allows damages to be recovered up to the time of trial only where an injunction is sought, either in lieu of or as well as damages, and that because only damages and no injunction was sought here, the measuring period was wrong.

The Gregers respond that Missouri has rejected the common-law rule in favor of the more modern approach, which allows damages up to the time of trial for suits in either law or equity. The Gregers also point out that Discwasher waived appeal of this issue by failing to object to the introduction of postfiling evidence at trial.

The Missouri law on this issue, although somewhat cryptic, is discernible. In a nuisance suit for damages alone, damages are limited to the injuries suffered at the time of the filing of the suit. Only when the suit seeks an injunction (equitable relief) as well as damages, are damages allowed to the time of trial. In Thompson v. Hodge, 348 S.W.2d 11, 15 (Mo.App.1961), the court stated: "In suits for damages because of nuisances, damages may be allowed for injuries suffered up to the time of commencement of suit, or, if the suit be in equity for injunction with damages as an incident, up to the time of trial, that is, for damages already sustained." (footnotes omitted). In City of Harrisonville, Mo. v. W.S. Dickey Clay Mfg. Co., 61 F.2d 210, 213 (8th Cir.1932), a case dealing with a nuisance in Missouri, this court stated: "The ordinary rules as to the measure of damages apply in this case. Where, as here, both equitable relief by abatement and the recovery of damages are sought in the same action, damages sustained up to the time of the trial may be awarded."

In opposition, the Gregers cite Fletcher v. City of Independence, 708 S.W.2d 158, 178 (Mo.App.1986), which stated: "In [this type of] case the damages are measured by the reduction in the rental value of the property during the continuance of the nuisance--as well as other incidents of damage--such as loss of comfort and health." The Gregers acknowledge that in some jurisdictions damages in a suit of this type are limited to the time the suit was filed, but assert that Missouri has adopted the modern view, which states that "when there is a series of continuing harms the plaintiff * * * is permitted to recover damages only for harm to the use of the land up to the time of trial." Restatement (Second) of Torts Sec. 899 comment d, p. 443 (1977) (emphasis added).

We must therefore determine whether the Fletcher case overruled Thompson and accepted the modern view as Missouri law. The case of Bollinger v. American Asphalt Roof Corp., 224 Mo.App. 98, 19 S.W.2d 544 (1929) is instructive, as it encompasses both the seemingly contradictory Fletcher and Thompson cases.

In Bollinger, the proprietor of a pleasure boating business sued the owner of a roofing plant, alleging that the plant had polluted and ruined the stream, making it unusable for boating. The plaintiff won a verdict and defendant appealed, asserting that the trial court should have instructed the jury that the nuisance was permanent, not temporary. The court thus embarked on a discussion of temporary and permanent nuisances, stating the following:

[W]here the nuisance is of a continuing (abatable) nature, [i.e., a temporary nuisance] each continuance gives rise to a new cause of action, and successive actions may be maintained for the damages accruing from time to time * * *although in such case the recovery is limited to damages for the statutory period preceding the commencement of the action.

Id. 19 S.W.2d at 547, quoting Hayes v. St. Louis & S.F.R.R. Co., 162 S.W. 266 (1913). The Bollinger court then determined that the nuisance was temporary, and the court's words are equally apt in this case:

[I]t seems clear that the erection of defendant's plant for manufacturing purposes cannot be said to have been a nuisance per se, or such as in itself was notice or evidence that it would be operated and maintained in a way to constitute such a nuisance. There is nothing in the character of the structure which would in any way prevent it from being maintained indefinitely without offense to any one. The things complained of are due to the manner of its use.

By their very nature the things involved in the manner of use of the plant are abatable, and the evidence shows that some of them in this case were in fact abated in part * * * . ⁴

Id. 19 S.W.2d at 547-48. The court then stated the passage found in Fletcher which the Gregers assert establishes the modern rule in Missouri:

As to the measure of damages for injury to real estate by a nuisance, the rule has been stated as follows: "Where the injury to real estate is permanent, the measure of damages is the depreciation in the value of the property; and all damages, both past and prospective, may be recovered. Where the injury is temporary or remediable, the measure of damages is not the depreciation of the value of the property, but the depreciation of the rental or usable value during the continuance of the injury; and damages as for a permanent injury cannot be allowed where the injury is temporary or the nuisance removable."

Id. 19 S.W.2d at 549, quoting 46 Corpus Juris, Sec....